CITATION: Wilson v. Bedard, 2017 ONSC 4517

COURT FILE NO.: F368/14

DATE: September 1, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Kelly Lyn Wilson

Kate Bennett for the applicant

Applicant

• and -

Raymond Isidore Bedard

William R. Clayton for the respondent

Respondent

HEARD: October 11-14, 17-21, 24, 29, 2016; January 9-12, 18-20; February 6-10 (last written submission April 26, 2017)

VOGELSANG J.

[1] These parties married on June 2, 2001, after living together for almost four years. They separated on December 30, 2008. At the time of trial, six years later, both Ms. Wilson and Mr. Bedard were 48 years old. They have two children: Jack Isidore Wilson Bedard and Quinn Anelise Grace Bedard, born March 13, 2005 and May 8, 2007, respectively.

[2] Jack was described by his mother as being “loving and very affectionate … he wants to please.” She said Quinn is a “happy girl” and very bright and sensitive. She enjoys her several friends and singing in talent shows. She reads above her grade level and is “very loving.” Mr. Bedard, as well, was enthusiastic in complimenting his daughter and her abilities. He testified about the fact that he can do things to make Jack happy. During his evidence in-chief, he spoke about receiving “lots of hugs” from his son the night before when the boy jumped into bed with him. He said Jack was “really kissy last night.” He testified that they share a close bond. Jack is “a great little man.”

[3] Jack Bedard was diagnosed as being on the severe end of the autism spectrum in 2007 when he was very young. The report of Carolyn Carrier, the clinical investigator appointed by the Office of the Children’s Lawyer, sets out the range of his other genetic and developmental conditions. Jack has apraxia. He does not speak. He cannot dress himself and functions well below the level of his peers. He is not yet completely toilet-trained, cannot brush his own teeth and cannot cut his own food. He needs help eating. He is assisted in communication through pictures on his “communication iPad.”

[4] Being unable to express his bodily feelings, when Jack is ill it is difficult to ascertain what is wrong with him, given his limited ability to communicate other than through his non-verbal behaviours. The result, of course, is frequent trips to doctors or other health-care professionals.

[5] Jack has no understanding of matters of his basic personal safety. He usually wears noise-cancelling earphones as he is hypersensitive to noise. He becomes agitated hearing loud noises or even a variety of noises.

[6] Jack demonstrates substantial learning delays and generally learns only by repetition and rote. He is provided one-on-one care at school and has his own full-time educational assistant and an individual education plan (IEP). One-on-one care is also required for Jack in public, at birthday parties, play dates, camp or other recreational activities.

[7] Four years of private autism therapy followed Jack’s initial diagnosis, the program running in the parties’ home with the therapists coming and going throughout the day and Ms. Wilson assisting. Mr. Bedard did not participate in the actual therapy.

[8] In 2009 Jack was enrolled in Intensive Behavioural Intervention (IBI) therapy, conducted through the Thames Valley Children’s Centre. Ms. Wilson stayed at home with Jack while he engaged in the IBI therapy, which lasted until around October of 2011. She acted as part of the “therapy team” as required by the program.

[9] Jack was almost seven years old when he was able to begin school and Ms. Wilson began a continuing campaign of advocacy on her son’s behalf with the school administration and teachers, ensuring that Jack’s required technical (computer and assistive aids) support is purchased and available; that the teaching staff is trained to operate the special software; that exceptions are made to accommodate Jack – like convincing the principal that the educational assistant be allowed to take him off the school property for a walk at recess to help him control his behaviour – that special exceptions be made to Board policy that would benefit Jack – like having one educational assistant follow him year to year (instead of following the normal rule requiring a change of personnel to prevent “bonding”), and ensuring that a new principal was informed of all Jack’s problems, programs and special needs.

[10] Ms. Wilson’s constant advocacy on Jack’s behalf, of necessity, included participation in fundraisers, pizza lunches, staff appreciation events, field trips (for both Jack and Quinn), craft days and helping other parents of children with disabilities at meetings with teachers to promote an understanding of behaviour.

[11] Jack struggles with his behaviour in the classroom and with peers and frequently has real difficulty engaging in learning for a full day. He can be hyperactive and have difficulty focusing. His behaviours can become violent, including banging his head, biting himself and others, pinching and scratching others, and hitting, charging or head-butting peers. When excited, agitated or confused, he indulges in “stimming,” a sometimes violent rapid flapping of his hands or arms to try to calm himself. His behaviours frequently escalate to the point of his having to be removed from the classroom or the school itself. If he has to be taken home, it is Ms. Wilson (almost invariably) who comes to get him on very short notice.

[12] Quinn is closely connected to her brother Jack. She was found by Ms. Carrier to have healthy development and to excel socially and academically. She presented to the clinical investigator as confident and energetic. Very bright academically, she is outgoing, has a strong peer group and is engaged in various extracurricular activities.

[13] The parties agree that Ms. Wilson is the children’s primary caretaker and, as well, that they have resided primarily with her in the former matrimonial home since separation at the end of 2008.

CUSTODY

[14] Ms. Wilson seeks an order granting her sole custody of the children with several conditions attached dealing with decision making, communication between the parties and availability of information concerning the children. Mr. Bedard argues that the custody award should be joint. The parties, quite properly, concur that the issue of custody should be approached from the perspective only of the children’s needs and what arrangement will best meet their needs.

[15] The applicable statutory provisions are important:

Divorce Act

Order for custody

16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

Joint custody or access

(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

Terms and conditions

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Past conduct

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[16] As Chappel J. said in K.(V.) v. S.(T.), 2011 ONSC 4305 (Sup. Ct.):

66 Unlike many provincial and territorial statutes dealing with custody and access, the Divorce Act does not spell out a lengthy list of other factors for the court to consider in assessing the best interests of the child. The flexible and imprecise nature of the best interests test set out in the Divorce Act renders a measure of indeterminacy inevitable, but recognizes the paramountcy of the child's needs and interests over the interests of expediency and predictability. [Gordon v. Goertz (1996), 1996 CanLII 191 (SCC), 19 R.F.L. (4th) 177 (S.C.C.); Young v. Young (1993), 1993 CanLII 34 (SCC), 49 R.F.L. (3d) 117 (S.C.C.)]

67 In an effort to obtain some assistance in applying the best interests test, courts across the country have decided that provincial and territorial legislation setting out criteria to consider in carrying out the "best interests" analysis may be referred to as guides in deciding cases under the Divorce Act. [T.(K.A.) v. T.(J.) (1989), 1989 CanLII 8818 (ON SC), 23 R.F.L. (3d) 214 (Ont. U.F.C.); V.(K.C.W.) v. P.(K.L.), 2010 NBCA 70 (N.B. C.A.).] The relevant statutory provision in Ontario is section 24 of the Children's Law Reform Act, [R.S.O. 1990, c. C-12, as amended] which provides as follows:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child.

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.

[17] The mandatory consideration of violence or abuse in assessing ability to act as a parent is of particular relevance here because Ms. Wilson has maintained throughout that she was the victim of isolated incidents of physical harm at the hands of Mr. Bedard. She also complained that she has been treated abusively in a psychological and emotional sense. Mr. Bedard, of course, denied those allegations and blamed Ms. Wilson as the aggressor.

[18] I have carefully considered the evidence of both parties about the abuse issue and, as well, the available corroboration and the attitude and demeanour of both parties in the witness box. I conclude that Ms. Wilson has an honest and well-founded fear of Mr. Bedard and his propensity at times for ignoring boundaries and pressing her unfairly and insistently. In the witness box, Mr. Bedard appeared persistent, confident, unyielding, intelligent and very glib. He is physically a very imposing man – he formerly worked as a “bouncer” and was nicknamed “Bruiser” by his high school peers – and a complete contrast to the quite quiet and diminutive Ms. Wilson.

[19] Mr. Bedard’s description of Ms. Wilson supposedly hitting him without warning in Ireland on their honeymoon trip, which was completely denied by Ms. Wilson, sounded quite bizarre and implausible to me. Similarly, there was nothing in the security camera footage near the swimming pool at Western University which could corroborate Mr. Bedard’s story that Ms. Wilson suddenly pushed or hit him on the back or the shoulder, while they were walking down the corridor behind the children, because, he said, she was upset about the fact that an order had just been made for the involvement of the Office of the Children’s Lawyer in their proceeding.

[20] On the other hand, Ms. Wilson was quite believable in her complaints about Mr. Bedard’s refusal after separating to stay out of the matrimonial home and the garage, his reluctance to quit the premises if he began to insist on something he wanted and they argued, his quick “escalation” (her words) when he was thwarted and would lose his temper and his bullying and rigidity. She described a pattern of behaviour where he would become “passionate” about an issue, would insist on “debating it” and would not leave.

[21] Ms. Wilson’s evidence of Mr. Bedard’s threat in May of 2012 that she should “get a job” (notwithstanding her care for their severely disabled child), that he was going to take her off the line of credit and that he would not pay support is, again, yet another example of financial and emotional abuse and the obvious power imbalance existing between the parties. That imbalance was a consistent presence throughout the marriage. Mr. Bedard was secretive and compulsive about all their finances and their records, which he kept in binders with instructions to Ms. Wilson not to go into his office where they were kept. If she were caught looking at even her own bank records, she testified “things would escalate.” Interestingly, in January, 2009, when Mr. Bedard decamped to the Bayfield cottage with his clothes, all the binders were gone too.

[22] I accept Ms. Wilson’s evidence concerning the serious incident of physical violence which occurred in the Fall of 2008, precipitating the separation. Mr. Bedard’s explanation, that he was only fending off Ms. Wilson who was punching him, is quite inconsistent with the extent of the bruising on Ms. Wilson’s body as depicted in the photographs taken by Mr. Spence, their neighbor (who also described Ms. Wilson crying and shaking). I cannot accept, either, the rather incredible version offered by Mr. Bedard concerning the extensive damage to the cottage door which, he would have me believe, occurred when he pushed through the locked entranceway. Ms. Wilson and the photographs demonstrate that, as she said, much more probably Mr. Bedard stormed back through the unlocked door and broke it.

[23] Ms. Wilson described the avoidance techniques she has developed as a response to Mr. Bedard’s bullying and abuse, like taking pains not to be alone with him in a car, even if both of them may be travelling to the children’s school for an IEP meeting for Jack. Her neighbor and friend, Beth Vincent, testified that she goes next door if Mr. Bedard’s car is parked outside for over five or ten minutes, as she is acutely aware of the fact that Ms. Wilson is uncomfortable in Mr. Bedard’s presence and usually stands in the door frame with the door half-open, facing Mr. Bedard on the porch. She described their mutual body language as “tense” and testified that Ms. Wilson “looks like a cornered cat.”

[24] In Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.), McLachlin J. discussed the Divorce Act s. 16(9) prohibiting a judge taking past parental conduct into account in assessing best interests and said at para. 21:

… Parental conduct, however meritorious or however reprehensible, does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child.

[25] In my view, the repeated behaviour of Mr. Bedard is oppressive and abusive and rises to the level of negatively affecting his ability to work cooperatively with Ms. Wilson and to communicate with her effectively in the future: see Butorac v. Doucette, 1999 CarswellOnt 4304 (Sup. Ct.) where Whalen J. described those two qualities as a necessary requisite for a joint disposition of custody. It does not matter that the parties have generally been able to eventually agree in the past on the myriad issues with which they have been faced with Jack, a child with such real special needs. Likewise, it certainly makes no difference to me that Mr. Bedard has prepared so many thick binders of e-mails and texts between the parties in a rather frantic attempt to show that they have been, in his terminology, “co-parenting.” Ms. Wilson was cross-examined about a particular e-mail demonstrating that things were “relaxed, informal and loosey-goosey” between them but she insisted that Mr. Bedard had simply “selected a few e-mails but they do not show the whole story.” She was firm that their “relationship was very volatile and the e-mails don’t demonstrate the volatility.” I believed her. They do not.

[26] Mr. Clayton later was cross-examining Ms. Wilson about the parents attending an event surrounding the first day of school in 2011 and the benefits of the children seeing the parents together. She conceded the benefit, although she reminded him that, when together, “things escalate and there are problems.” She pointed out that almost all of Mr. Bedard’s photographs of activities showed crowds of people, not the parties alone. She asserted that, while the appearance might at first be pleasant for the children, that benefit would disappear at the eventual return of the arguing and abuse.

[27] I do not wish to be seen as ignoring or glossing over all the best interests considerations expected of me in s. 24 of the Provincial legislation, but Ms. Carrier has covered those areas in her report on behalf of the Office of the Children’s Lawyer, and I accept her findings and her custody recommendations. More importantly, she accepts the general view that Ms. Wilson is the “primary ‘go to’ parent” for the children.

[28] The proposal put forward with respect to sole custody by Ms. Wilson, supported by Ms. Carrier, would maintain and foster what all the witnesses described as the loving affection and emotional bond between Jack, Quinn and both their mother and father; in addition, the facts of Jack’s special needs make his bond with and reliance on all the school and therapeutic individuals helping him of singular importance and, in my view, they would not be enhanced by the custody and residence scheme sought by Mr. Bedard (s. 24(2)(a)(i) and (iii)). The children have enjoyed the stability of the respective homes of each of their parents for a long time and the trial featured very considerable evidence about the respective abilities of the parents and their commitments to guidance, education, physical needs and, especially here, the meeting of Jack’s special needs (s. 24(2)(c) and (d)). Both parents took advantage of their full opportunity to expand on their plan for future care of the children and to explain their past behaviour and efforts (s. 24(2)(g)). To my mind, a very important factor here is the fact that Ms. Wilson seems to be the psychological parent of the children, having been, in my view, the person providing the basic sense of permanence and stability in the family unit since the parental separation over eight years ago (s. 24(2)(f)).

[29] The words of L’Heureux-Dubé J. are entirely apposite in Gordon v. Goertz, supra (although in dissent as to the result) at para. 121:

The assessment of the child's best interests also involves a consideration of the particular role and emotional bonding the child enjoys with his or her primary caregiver. The importance of preserving the child's relationship with his or her psychological parent has long been recognized by this Court on a number of occasions (Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165, at p. 202; Racine v. Woods, supra, at p. 188; King v. Low, 1985 CanLII 59 (SCC), [1985] 1 S.C.R. 87, at p. 101). There is a growing body of evidence that this relationship may well be the most determinative factor on the child's long-term welfare. As I mentioned in Young, supra, at p. 66, the vital link between continuity in the emotional bonding of the child with his or her psychological parent and the best interest of the child finds ample support in the literature …

[30] Where children have pronounced special needs, and one parent has been primarily responsible for both the day-to-day decision making and monitoring the efforts of professionals to meet those needs, the ability to make future decisions – perhaps quickly – should not be impeded by the necessity of prior concurrence by another: B.(C.L.) v. N.(A.J.), 2015 ONCJ 404 (Ont. Ct.); Ciutcu v. Dragan, 2015 ONCJ 659 (Ont. Ct.). While obviously consultation is beneficial, Mr. Bedard’s history of escalation and rigidity frustrates the possibility of an effective and safe joint custody award.

[31] Ms. Wilson’s proposal with respect to sole custody and the consultative provisions set out in her draft order sought (paragraphs 2 to 9 inclusive) set out fair and sensible conditions concerning decision-making, communication and child-focussed information. An order will go in those terms.

ACCESS

[32] In his requested draft order submitted at the outset of trial, Mr. Bedard proposed that he have time with Jack and Quinn essentially in the same terms as decided by Templeton J. in her February 23, 2015 temporary order. In her written reasons, she observed – and I noted the same thing during this trial – how fortunate it was that these two children have two parents who love them and are so committed to them. She then dealt with the important question of Jack’s very special needs and the danger of focusing too much on him to Quinn’s detriment. She said:

[12] In the circumstances of this case, it would be very easy to allow one child’s emotional and physical health needs to overshadow the needs of the other sibling. In my view, great care must be taken to ensure that the parties’ daughter is allowed to develop a relationship with each parent independent of her brother.

[13] Mr. Bedard must also realize that his relationship with Ms. Wilson is over. Joint and shared activities between Mr. Bedard and Ms. Wilson are to end. Not only do the parties need the ‘emancipation’ but so do the children.

[33] Templeton J. went on to order that Mr. Bedard have the children together on one weekend per month and separately on the succeeding two weekends, with Ms. Wilson having both children on the fourth weekend. She also included dinnertime access with both children from the end of school until 7:00 p.m. on Wednesdays.

[34] Mr. Bedard formally advanced that access claim through his counsel at the opening of trial with a request that the Wednesday access extend overnight until their return to school the next day or 9:00 a.m. if there is no school for them; however, during the trial, I was surprised when Mr. Bedard, giving his evidence, appeared to advance a different claim, telling me that “if [he] had [his] druthers, [he’d] have week-abouts as Justice Templeton talked about.” While it is true that Templeton J. mentioned sharing time, what she actually said was:

[11] All children need a schedule that is consistent and allows them to develop a meaningful relationship with each of their parents individually. Unfortunately, to create an environment necessary to this development, parents frequently and mistakenly demand equal time sharing. And when both parents work outside of the home and/or live in different communities, the competition for this ‘time’ becomes focussed on the few hours a child is awake after school and the weekends.

[35] Even leaving aside Ms. Bennett’s firm objections to Mr. Bedard’s mid-trial change in his position, the facts in this case do not support an “equal sharing” or 50% residence arrangement for two important reasons.

[36] First, Ms. Wilson gave compelling testimony about Jack’s real difficulties with the daily transition from home to school and the quite extraordinary lengths she has to go to in order to get him ensconced in the classroom setting daily without incident. She spoke at length about her maintaining the important links she has established with the educational assistant, Ms. Glasman, and all the other people assisting Jack at the school. I thought Mr. Clayton insulted Ms. Wilson in his cross-examination about her being “obsessed” with Jack and his problems, when he was pressing her about obtaining full-time work. The evidence of Ms. Glasman, the experienced educational assistant, fully supported that of Ms. Wilson and convinced me that Jack needs and will need to be able to continue his reliance on his mother’s assistance on a daily basis in order to settle in successfully at school.

[37] Second, the “maximum contact” principle in s. 16(10) of the Divorce Act cannot be said to always be in the best interests of a child to support equal residence time because that interpretation would represent a “cloaked presumption” of shared custody ignoring the plethora of “best interests factors”: H.(A.N.) v. C.(M.K.), 2010 NBQB 120 (N.B.Q.B.).

[38] In V.(B.) v. V.(P.), 2012 CarswellOnt 4738 (C.A.), the Court of Appeal was critical of a trial judge who, it said, failed to respect the “maximum contact principle”; however, having said that, the court noted the findings at trial that the father tended to be controlling, overbearing and disrespectful of the mother and rejected access on a 50% basis as being inconsistent with the children’s best interests. The father was to have access 35% of the time.

[39] The evidence has satisfied me in this case that Ms. Wilson remains fearful of Mr. Bedard’s bullying and control. Equal time would not be appropriate here. The case is similar to Khairzad v. McFarlane, 2015 CarswellOnt 17532 (Sup. Ct.) where the trial judge rejected a claim for equal parenting time where the father demonstrated a violent, assertive and unbending personality.

[40] The proposal put forward by Ms. Wilson actually increases Mr. Bedard’s time with the children, does not split the children up for two weekends out of four and maintains their longstanding status quo of being in Ms. Wilson’s primary care during the week, including on Sunday evenings, which enables Quinn and Jack to settle back into their routines before their return to school on Monday.

[41] An order respecting custody, access and related matters will go as follows:

1. The applicant, Kelly Lynn Wilson, shall have custody of the children, Jack Isidore Wilson Bedard, born March 13, 2005, and Quinn Anelise Grace Bedard, born May 8, 2007.

2. The respondent, Raymond Isidore Bedard, shall have the same rights to the release of information concerning the children as if he were the party having custody, including but not limited to matters of education, extra-curricular activities and health, directly from the relevant sources without the necessity of any release, direction, or acknowledgement executed by the applicant. This order shall constitute sufficient authorization, direction, and release for so doing.

3. Prior to making any important decision with respect to the children’s medical care/treatment or education, the applicant shall first advise the respondent and shall seek his input and opinion. The applicant shall consider the respondent’s input and opinion in rendering a decision.

4. Notwithstanding any opposition or disagreement by the respondent with respect to the applicant’s decision, the applicant’s decision will prevail, subject to an order of the court.

5. The applicant and the respondent shall communicate with one another in writing (e-mail shall suffice), except in the event of an emergency, such communication to always be child focussed and respectful.

6. The applicant shall advise the respondent in writing (e-mail shall suffice) of any regularly-scheduled appointments for the children, including but not limited to appointments with the children’s health care providers or school, at least 24 hours in advance of the appointment. Both parties shall be permitted to attend.

7. The applicant shall, on a monthly basis, provide the respondent with a written update (e-mail shall suffice) with respect to the children’s medical, educational, and social development.

8. The applicant shall be designated the children’s primary contact for their school and the respondent shall be designated the secondary contact. In the event that the children’s school contacts the applicant on a day that they are regularly scheduled to be in the respondent’s care and requests that a child be picked up early, as a result of his or her illness or other cause, the applicant shall forthwith contact the respondent to give him the first opportunity to pick up the child.

9. The children shall reside primarily with the applicant.

10. The respondent shall exercise access with the children as follows:

a. on alternate weekends, from Thursday at school dismissal (or 3:00 p.m. on non-school days) to Sunday at 7:00 p.m., with such access to be extended to Monday at 7:00 p.m. if Monday is a statutory holiday or non-school day;

b. on Wednesdays from school dismissal (or 3:00 p.m. on non-school days) to Thursday morning at school entry (or 9:00 a.m. on non-school days), on the week immediately following his weekend access;

c. on the first Tuesday of each month from school dismissal (or 3:00 p.m. on non-school days) to Wednesday at school entry (or 9:00 a.m. on non-school days), with the child, Jack;

d. on the third Tuesday of each month from school dismissal (or 3:00 p.m. on non-school days) to Wednesday at school entry (or 9:00 a.m. on non-school days), with the child, Quinn; and,

e. on such further and other dates and times as may be agreed between the parties from time to time.

11. The following holiday access schedule shall override the regular access schedule in the event of a conflict:

a. March Break: the children shall be in the applicant’s care during the March Break school holiday in even numbered years and in the respondent’s care in odd numbered years. The March Break school holiday shall be defined as a seven (7) day period, which shall include the party’s regularly-scheduled weekend with the children;

b. Easter Weekend: the children shall be in the care of the party with whom they are regularly scheduled to be during the Easter Weekend from school dismissal on the Thursday prior to the Easter Weekend to Sunday at 7:00 p.m. and shall be in the care of the other party from Sunday at 7:00 p.m. to Monday at 7:00 p.m.;

c. Mother’s Day: if the children are not otherwise in the applicant’s care on this weekend, they shall return to the applicant’s care on Saturday at 7:00 p.m.;

d. Father’s Day: if the children are not otherwise in the respondent’s care on this weekend, they shall be in the respondent’s care from Saturday at 7:00 p.m. to Sunday at 7:00 p.m.;

e. Summer Holidays:

i. the children shall be in each of the applicant’s and the respondent’s care on a week-about basis, throughout the summer holidays. A week shall be defined as a 7 day period from Sunday to Sunday. The parties shall exchange the children on Sundays at 7:00 p.m. The applicant shall have the children in her care on the first week of the summer holidays, which shall be the week commencing on the first Sunday in July, and on alternating weeks thereafter in even numbered years. The respondent shall have the children in his care on the first week of the summer, which shall be the week commencing on the first Sunday in July, and on alternating weeks thereafter in odd numbered years;

ii. regardless of the summer holiday schedule, the children shall be in the applicant’s care on the weekend prior the commencement of the school year from Saturday at 1:00 p.m. to school entry on their first day of school;

f. Thanksgiving Weekend: the children shall be in the care of the party with whom they are regularly-scheduled to be during the Thanksgiving Weekend from school dismissal on the Friday prior to the Thanksgiving Weekend to Sunday at 7:00 p.m. and shall be in the care of the other party from Sunday at 7:00 p.m. to Monday at 7:00 p.m.;

g. Christmas Holidays:

i. School holiday: the applicant and the respondent shall share equally the children’s Christmas school holiday. The applicant shall have the first half of the holiday in even numbered years and the last half of the holiday in odd numbered years. The respondent shall have the first half of the holiday in odd numbered years and the last half of the holiday in even numbered years. The first half of the holiday shall begin at school dismissal on the children's last day of school in December and end at 7:00 p.m. on the date that is the halfway point of the holiday. The second half will start at 7:00 p.m. on the date that is the halfway point of the holiday and end at 7:00 p.m. on the day before the children return to school in January;

ii. December 23^rd – 26^th: regardless of the Christmas school holiday schedule set out above, the children shall be in the respondent’s care on December 23^rd at 4:00 p.m. to December 24^th at 7:00 p.m. and the in applicant’s care on December 24^th at 7:00 p.m. to December 26^th at 4:00 p.m. in even numbered years. The children shall be in the applicant’s care on December 23^rd at 4:00 p.m. to December 24^th at 7:00 p.m. and the in respondent’s care on December 24^th at 7:00 p.m. to December 26^th at 4:00 p.m. in odd numbered years.

h. Children’s Birthdays: the children shall spend at least two (2) hour with the party with whom they are not scheduled to be on each of their birthdays, subject to their school and regularly-scheduled activities.

12. Neither party shall attend the children’s extra-curricular activities or events during the other’s time with the children, unless the activity or event is a celebration for program completion, play-off game or tournament.

[42] In the very last paragraph of her April 9, 2015 report, Ms. Carrier, the clinical investigator, makes what I view as a sensible and necessary recommendation. Accordingly, I will add a further regulatory paragraph to the access provisions:

13. Boundaries: Both parties shall respect the other person’s home and space. Therefore, they will not enter into each other’s home unless requested in advance to do so. It is recommended that the parent wait in their vehicle or driveway for the exchange of the children if it is occurring at each other’s homes.

THE INCOME IMPUTATION ISSUES

[43] Ms. Wilson claims entitlement to both child and spousal support from the date of separation. As Mr. Bedard was not employed between June, 2010 and August 2015 (except for a three-month period in 2013), she seeks to impute income to him both in that period and after January 1, 2017, alleging intentional unemployment on his part. Mr. Bedard responds with his own corresponding income imputation claim, saying that Ms. Wilson is underemployed and should be receiving more income from a full-time job.

[44] After completing a four-year Honours History degree at university, Mr. Bedard worked selling life insurance from 1991 to 1993. In 1994, he began 16 years of work with Lifetouch Canada Inc., a large national corporation involved with school student photographs and related items and promotions. He held positions of sales representative (1994 to 1996); management trainee/sales manager (1996 to 1997); territory manager (1997 to 2005); regional sales manager (2005 to 2007); and territory manager (2007 to 2010). He was terminated by Lifetouch in June, 2010 and paid a sizeable severance sum, but his rapid rise in the company and his significant compensation demonstrates real skill in sales and management and the ability to work hard. Indeed, both Ms. Wilson and Mr. Bedard gave evidence about his multiple promotions and the many awards won by his sales territories.

[45] Other than a short contract position with RHP Group from January to April, 2013 at a salary of $40,000 per annum, Mr. Bedard was unemployed until he commenced a contract position with Jostens Canada as manager of national sales in August, 2015 at an annual salary of $100,000. Jostens is in the same business as Lifetouch and, in fact, was its successor. The contract was extended twice, ending December 30, 2016 (halfway through the trial) when Mr. Bedard was terminated.

[46] In the years since separation, Mr. Bedard’s income (rounded) was:

2008: 2009: 2010: 2011: 2012: 2013: 2014: 2015: 2016:

227,000 176,500 170,600 17,800 23,200 16,800 20,000 not noted 102,000

(presumably 40,000 to 50,000)

[47] Given the almost five years of Mr. Bedard’s unemployment and his assertion that he was looking for work but was unsuccessful – a circumstance he says he now faces again – Ms. Bennett called Colleen O’Brien to give opinion evidence about (a) the transferability of Mr. Bedard’s skills specific to his education, training and employment history; (b) given those skills, his potential employability; and (c) Mr. Bedard’s earning capacity relative to employment available within his skill set.

[48] Ms. O’Brien appeared very well qualified to give the opinions she expressed, with over 30 years in the vocational field, including work with Human Resources Canada as a program director, later as a specialist vocational consultant, then director of a rehabilitation centre and, from 2008 to the present, owner and president of Practical Solutions Vocational Services.

[49] Ms. O’Brien found problematic areas in Mr. Bedard’s attempts at finding work. She said if he “had been diligent in promoting and marketing his skills and services since 2010, he would be very capable of [finding employment].” She assessed his potential in the area of $200,000. She termed his lack of success “definitely surprising” and attributed chronic failure to Mr. Bedard presenting factors or expectations which created barriers in interview. She was critical about Mr. Bedard failing to avail himself much at all of “networking,” by exploring the hidden jobs market with the assistance of a vocational counselor, a technique she said was “much more successful than just going to jobs listings on the Internet.” This was a point emphasized later by Allan Mills, Mr. Bedard’s vocational expert, who spoke about Ms. Wilson obtaining a job in the “hidden market,” describing it as “the best way to get a job.” In his words: “[I]t’s not what you know, it’s who you know.”

[50] Ms. O’Brien was definite that Mr. Bedard could transition into any occupational field and perform satisfactorily and successfully at the management level. She cited a number of potential employment opportunities for which he was qualified and testified that similar opportunities would have been available to him between 2010 and 2015 (had he conducted what she termed a “diligent and active” job search) earning between $50,000 and $170,000.

[51] As I said, Mr. Clayton produced Allan Mills to give expert opinion. Mr. Mills, as well, is a certified vocational counselor and experienced evaluator. In his examination in-chief, Mr. Mills was less sanguine than Ms. O’Brien concerning Mr. Bedard’s opportunities for employment, but the frailties of his positions became quite obvious during Ms. Bennett’s excellent cross-examination.

[52] Mr. Mills agreed that retraining would increase any jobseeker’s employability and stated that it would have been helpful for Mr. Bedard to seek to retrain or upgrade his education, especially where Mr. Bedard himself raised the issue of a lack of “institutional knowledge” being an obstacle in his search, maintained that his experience was in a “niche market” very susceptible to the adverse effects of new technology (like digital photography) and admitted that his history degree had almost no impact on his attractiveness as a job candidate.

[53] Mr. Mills also conceded the following, none of which is at all helpful to Mr. Bedard’s position:

1. Mr. Bedard had made many applications for jobs specifically requiring a certain educational level or a singular type of experience which he did not have, about which Mr. Mills was critical as being a doomed effort;

2. Mr. Bedard had not availed himself of educational seminars, volunteering (except for his very occasional position on a school special education committee), joining business associations or community organizations or attending networking events, all recommended strategies to find work;

3. Mr. Bedard did not take what Mr. Mills described as appropriate steps as a jobseeker, particularly one who thinks he is being marginalized or pigeon-holed into a narrow category of employers;

4. After a short period with a career counsellor provided by Lifetouch in December 2010, and a subsequent complete lack of success, Mr. Bedard persisted with the disappointing methodology instead of seeking out the assistance of another career services professional;

5. Mr. Bedard was not at all wise to skip days (he admitted doing that or spending only one or two hours on his efforts) when job searching because “a full-time effort is required”;

6. Mr. Bedard had referred to himself as spending years as a “business consultant” which he passed off to Mr. Mills as “essentially a smoke screen” to minimize the gap of time without employment. He had also made a reference in his resume to attending at the University of Chicago School of Business – when in fact he was only there because it was the rented venue for a sales meeting. Mr. Mills attempted to minimize these actions as simply showing Mr. Bedard’s desperation to get a job by over-inflating his background, although he was forced to concede in cross-examination that a jobseeker should not lie on a resume. Ms. O’Brien was definitely not so charitably disposed about this tactic and indicated potential employers would inevitably react badly on being apprised of such efforts;

7. While Mr. Bedard’s age probably precluded a multi-year return to school or retraining, he could have taken a year online to research and train in other fields like sales of insurance or mortgages, obtain a professional designation and start at the bottom; and

8. Mr. Bedard admitted that he could not say if he made any efforts at all to continue his job search when he was employed for the few months at RHB Group in early 2013 at a very low salary or, later, at Jostens Canada when he was employed on a contract (when he made no attempts until December 16, 2016), while Mr. Mills agreed with Ms. Bennett that it is helpful for a person to begin job search efforts just as soon as a pending change in employment appears possible.

[54] Mr. Bedard’s position with respect to his efforts in seeking to regain employment is impossible for me to accept as probable in all of the circumstances of this case, for a number of reasons:

[55] Ms. Wilson testified believably that the “arrangement” she agreed to with Mr. Bedard following their separation at the end of 2008 continued after he announced that he had been declared redundant in 2010. Although she denied knowing specifics of what money he received, he continued to pay the expenses she incurred for herself, the children and the house. She was fully engaged in looking after the young children, one of whom severely disabled. She denied hectoring him or holding Mr. Bedard at fault. He was living in Bayfield and her job, she said, was the children and their needs.

[56] After the severance funds Mr. Bedard had received ran out and his savings had been depleted, he turned to two quite large lines of credit to pay expenses and to finance his lifestyle. Ms. Wilson was examined and cross-examined about the “hard facts of economic life” and said she “cut back” on what she spent for herself and the children. By contrast, Mr. Bedard was closely cross-examined about his personal spending both before and after his 2010 termination. Although he balked at actually acknowledging that he was “a spender” and “liked to spend money,” he conceded he likes to shop, to have cash in his pocket for sudden spontaneous discretionary spending and makes frequent purchases weekly for eating out, clothing, hobbies and golf equipment. After his termination, in his words: “I continued to spend … I don’t know if I cut back or not.” From the amounts charged on his credit cards and direct withdrawals from his line of credit, it seems plain to me that, when he should have been engaged in the full-time search for work (as endorsed even by his own expert), Mr. Bedard was spending the majority of his time around his cottage property, golfing frequently and taking trips to the U.S.A. to shop and play more golf. All this was financed by simply piling more debt on the line of credit.

[57] The evidence, as well, left me in real doubt about Mr. Bedard’s voluminous productions related to the job searches he described. The almost unbelievable quantity of thick briefs, binders and extensive charts prepared by Mr. Bedard to justify his various positions staggered me. Every time the court did not sit for a few days or during a six week recess, more extensive material inevitably appeared. Endless e-mails and texts were produced to show some cooperation between the parties about the children. Thick volumes appeared of photographs of the parties and the children on outings – apparently to support Mr. Bedard’s position that they were “co-parenting.” When, eventually, I had to ask Mr. Bedard how much time he had spent in preparing all these materials (and the many binders of e-mails or job applications), he replied, in a serious voice: “an ungodly amount of time.” It was all unusual and very excessive.

[58] Mr. Bedard was cross-examined about why the binders of e-mails involved with his job search showed a first real spike only after the case conference before Goodman J. in July, 2014. His answer was not persuasive, blaming the small number of prior records of job seeking on an alleged computer failure. I found that hard to believe from a man obviously compulsive and exact in keeping records. Attached as Schedule A to these reasons is an extremely instructive graph prepared by Ms. Bennett from Mr. Bedard’s job application materials showing sudden huge spikes of “activity” after significant events during the litigation. In my view, it is much more probable that Mr. Bedard was almost totally involved in maximizing his time with the children and living an easier life at the cottage. Drawing on the resource of the lines of credit, he had neither need nor motivation to engage in a vigorous, effective job search and therefore did not do so.

[59] These facts are similar to Perkins v. Perkins, 2007 CarswellOnt 8369 (Sup. Ct.) where the father had not worked full-time since being laid off from his last position five years earlier. During that time, he had travelled extensively and had held odd jobs, but did not receive any regular or significant income. He had relied in part on his father’s generosity. The court imputed income to him commensurate with his income before being laid off. Child support was to be retroactive to one year after the father was laid off, as the court was satisfied that it could have taken him up to one year to find new employment.

[60] Mr. Bedard seeks to impute income to Ms. Wilson on the same basis as her similar claim which recalls the duty on spouses to “actively seek out reasonable employment opportunities that would maximize their income potential so as to meet the needs of their children”: Thompson v. Thompson, 2014 ONSC 5500 (Sup. Ct.) at para. 99.

[61] Ms. Wilson recounted working as a conveyance and title searcher – she emphasized she was not a law clerk and had never worked as one – for Fogler, Rubinoff in Toronto for five years until most of the title searchers were let go and she feared a similar fate. In the early ’90s she found work at Teranet and dealt with title documents, problem titles and potential liability problems in the new automated title certification program. She agreed that she was astute and capable in that role, but was adamant and believable in cross-examination when she denied her ability to apply for a law clerk’s role in a law firm almost 25 years after her training and after having never been employed in that capacity.

[62] After connecting again with Mr. Bedard, Ms. Wilson conceded that she took up work with him in the Lifetouch school photograph and accessory business. She was made responsible for sales promotions and selling in Etobicoke (which she described as a small and insular market where she could excel), and she did so quite successfully.

[63] After 2005, Mr. Bedard and Ms. Wilson agreed that she would stay at home to look after Jack and almost singlehandedly deal with his many needs. Shortly thereafter, her childcare and other responsibilities expanded when Quinn was born.

[64] Ms. Wilson recently gained part-time employment as an administrative assistant for Autism Ontario, working about 12 hours weekly. She earns approximately $8,750 annually. The terms of her employment, importantly, allow her considerable flexibility in start times and periods of absence to take care of emergencies with Jack.

[65] Ms. Wilson testified that Mr. Bedard has never been as actively involved with the details of Jack’s education as she has, although she admitted he attends the “high level” meetings. She claimed to be the parent responsible for maintenance of the positive home and school rapport and relationships in keeping with the personalization of Jack’s IEP which is intended to accent personalization and continuing tailoring to the individual student as a “living document.” This requires her to be available when school starts and ends for the required open, approachable and frequent communication with the school resources and teaching staff.

[66] Mr. Clayton tried to minimize and deflect Ms. Wilson’s evidence about her necessary contribution to Jack’s programming, but was met with the words of Exhibit 87, the 2016-2017 London and District Catholic School Board Special Education Plan and Report. While Ms. Wilson had been cross-examined to the effect that her efforts for Jack were really unnecessary and that there were “lots of Board Staff to do that,” the Special Education Report itself emphasizes the parental role and the primary need for continuing input, cooperation and consultation as part of the Board’s absolute commitment to inclusion of the parent in the education of these children with severe special needs.

[67] I accept Ms. Wilson’s evidence that Mr. Bedard always allowed her to take the lead role in monitoring Jack’s care and circumstances in assisting the school in understanding his special needs and giving needed direction to help their boy.

[68] With respect to upgrading, Ms. Wilson testified about her graduating from the law clerk diploma program from Centennial College in 1988. Any consideration of upgrading or retraining has been frustrated by the constant requirements of Jack’s care and a lack of available respite. Her evidence was that other programs, like dental or medical administration or medical office assistant, are generally evening classes unavailable to her.

[69] Mr. Clayton obtained an opinion from his expert, Mr. Mills, that Ms. Wilson could be employable on a full-time basis in either of her past jobs as a law clerk or in wholesale sales. The expert appeared unaware that she had never actually worked as a law clerk. He emphasized the “hard skills” of education and knowledge-based abilities from experience and conceded that her skills were dated. With respect to the sales field, he said she could become competitive by taking courses, volunteering and joining associations. Admitting that she needed to improve her basic skills in the legal or related fields, he suggested Ms. Wilson should attend Fanshawe College and take the law clerk course or undertake a course in real estate.

[70] Cross-examination by Ms. Bennett exposed the weaknesses of Mr. Mill’s opinion concerning Ms. Wilson’s ability to find full-time work and to assist more in support. He did not ask to interview Ms. Wilson but maintained he could “infer her personality” from his letter of instruction and a partial transcript, presumably from previous oral questioning, which showed she had a college diploma, had worked in sales and had a son with special needs. Interestingly, with respect to Mr. Bedard, Mr. Mills conducted two full interviews which he described as “very important” although he insisted that it was “not necessary to interview Ms. Wilson for the purposes of assessment.”

[71] Mr. Mills as much as conceded that an employer would require remarkable forbearance and flexibility if a full-time employee faced such pressing and conflicting demands on her time and ability to work.

[72] Even if Ms. Wilson can be said to be intentionally under-employed as contemplated by s. 19(1)(a) of the Federal Child Support Guidelines, S.O.R./97-175 [as amended] and that Mr. Bedard has met the onus of proof on an evidentiary basis for that finding (Homsi v. Zaya, 2009 ONCA 322 (C.A.)), the second step enunciated by the Court of Appeal in Drygala v. Pauli (2002), 61 O.R. (3d) 771 (C.A.) has the onus shifting to Ms. Wilson to show one of the exceptions of reasonableness: Jackson v. Mayerle, 2016 ONSC 72 (Sup. Ct.). Whether the employment decision must be “justified in a compelling way” (Riel v. Holland (2003), 2002 CanLII 45078 (ON CA), 61 O.R. (3d) 417 (C.A.)) or be found “reasoned, thoughtful and highly practical” (Thompson v. Gilchrist, 2012 ONSC 4137 (Sup. Ct.)), there should be no imputation of income to Ms. Wilson. Her ability to seek and obtain full-time employment is severely circumscribed by her unusual and very important obligations to Jack.

[73] While no income as a full-time employee can be imputed to Ms. Wilson, an issue arises as to the time when Mr. Bedard should have been earning money to assist in the support of the children and Ms. Wilson.

[74] In Pey v. Pey, 2016 ONSC 1909 (Sup. Ct.), Shelston J. referred to the large range of discretion of the court in fixing the terms of imputation on a rational basis, citing D.D. v. H.D., 2015 ONCA 409 (C.A.). He affirmed that a spouse’s previous income could be a factor in arriving at an amount of imputed income and referred to Lawson v. Lawson (2006), 2006 CanLII 26573 (ON CA), 81 O.R. (3d) 321 (C.A.).

[75] With respect to the commencement of support based on imputed income, considerations of reasonableness and fairness to all parties take hold. In Smith-Remus v. Remus, 2005 CarswellOnt 8246 (Sup. Ct.), McCartney J. found that the father had tried to find full-time employment as a licensed funeral director for over two years but failed without good reason. He had the proven ability to earn more and the court was satisfied that he could do so, but gave him a further three months to accomplish that. Similarly, in Perkins v. Perkins, supra, the court imputed income to the father which was commensurate with his income before he was laid off. Support was to be retroactive to one year after the father was laid off, the court being satisfied that it could have taken him up to one year to find new employment.

[76] Recalling Ms. O’Brien’s evidence that there would have been a number of potential employment opportunities for which Mr. Bedard was qualified between 2010 and 2015 (Exhibit 95), and her opinion that with a diligent, committed and active job search he should have been able to obtain a position comparable to his role at Lifetouch Canada Inc. earning between $55,000 and $170,000, in my view a reasonable quantum of imputed income is $100,000, equivalent to the level of remuneration he received from Jostens Canada in 2015 and 2016.

CHILD AND SPOUSAL SUPPORT

[77] Mr. Bedard should be afforded a reasonable period of time before the imputed income takes effect in terms of support, because even an effective job search would, of necessity, have taken some time to yield results. In my view, the middle of 2012 would be a fair approximation for the commencement of support because of the evidence of the parties about their argument in May of that year when Ms. Wilson expressed her unhappiness with Mr. Bedard’s use of the line of credit to pay all the bills and he announced his aversion to paying support and told her to get a job. After that, Ms. Wilson made a large withdrawal from the line of credit to protect her own position and began to pay most of the household and her personal bills.

[78] My view about the date for the commencement of support is buttressed by Exhibit 2 – tab 39, a joint letter of acknowledgement of support entitlement executed by both parties and dated April 20, 2013, about eleven months after the argument about support, bill payments and the line of credit. At the time of the letter, Mr. Bedard had been working at RHB Group at a reduced salary since early January, 2013. The letter affirmed that, first, a lump sum of $4,000 unattributed support cheque was being paid; second; support was (and had been) a live issue; third, both parties foresaw an eventual settlement or other determination of support entitlement and quantum and, fourth, the lump sum was to be credited to Mr.Bedard “from whatever is determined as owing.”

RETROSPECTIVE SUPPORT

[79] On these facts, it is not difficult to deal with the issues of entitlement to retrospective child or spousal support.

[80] The “D.B.S.” factors (enunciated in S.(D.B.) v. G.(S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231 (S.C.C.)) point directly to the conclusion that an award of past child support is appropriate, when a “holistic view” of the “particular factual matrix” is taken.

[81] Unreasonable delay cannot be raised in this case to eliminate Mr. Bedard’s obligation. Here the parties initially agreed that the needs of the children and both parents would be satisfied by resort to the large severance, some savings and the untapped lines of credit. Prior agreement of the parties to a temporary solution should be respected: Toscano v. Toscano, 2015 ONSC 487, 2015 CarswellOnt 836 (Sup. Ct.). This is obviously not a case where Mr. Bedard has been prejudiced by the effect of a child support award on his interest in financial certainty. Both parties always knew, and expected, that a day of reckoning would come.

[82] In D.B.S., Bastarache J. took a broad view of blameworthy conduct on the part of the paying parent. At paras. 106 and 107:

106 Courts should not hesitate to take into account a payor parent's blameworthy conduct in considering the propriety of a retroactive award. Further, I believe courts should take an expansive view of what constitutes blameworthy conduct in this context. I would characterize as blameworthy conduct anything that privileges the payor parent's own interests over his/her children's right to an appropriate amount of support. ...

107 No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct: see A. (J.) v. A. (P.) (1997), 1997 CanLII 12394 (ON SC), 37 R.F.L. (4th) 197 (Ont. Ct. (Gen. Div.)), at pp. 208-9.

[83] Any view of the clear lack of an intensive and motivated search for employment on the part of Mr. Bedard during the long period after his termination in 2010 supports my finding of blameworthy conduct on his part.

[84] The past and present circumstances of the children do not support elimination or reduction of a retroactive award. The needs of the children will continue. Ms. Wilson has exhausted her liquid funds and, obviously, has not been able to accumulate anything at all for the children’s future. Mr. Bedard admitted in the witness box that Jack will always be dependent on his parents. Ms. Wilson made the same statement, saying his eventual future as an adult will come to be residence in a protected, staffed community facility or group home – although she sadly noted that, even after an application for such a residence at the minimum age of eighteen, the waiting list is shockingly long. Where a retroactive award would ameliorate the circumstances of children, redress past inequities or provide for indisputable future needs, and not simply represent a transfer of capital, it is appropriate: Reis v. Bucholtz, 2010 BCCA 115 (C.A.); Santelli v. Russo, 2009 CarswellOnt 1394 (Sup. Ct.).

[85] Any prospect of hardship potentially faced by Mr. Bedard should not affect his responsibility for retroactive child support on these facts. The need for a retroactive award itself arose, again, from his failure to engage in a diligent job search and his choosing to exist in a carefree life financed ultimately by the lines of credit. Conduct of that nature cannot reasonably be employed as the basis for a plea of hardship. Indeed, in D.B.S. itself, at para. 115, the court used, as examples of hardship, the possible effects on new families and new children of a retroactive award and disruption of a paying parent’s certainty and present management of financial affairs. Nothing like that is apparent here.

[86] As I have indicated, mid-2012 is an appropriate date for the commencement of support. The need for support was raised in the May, 2012 argument which led to a basic change in the parties’ financial affairs. The issue continued and was acknowledged to have been present in the April, 2013 joint letter signed by both. As Bastarache J. said at para. 121 of D.B.S.:

121 … all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his/her interest in certainty becomes less compelling.

[87] Ms. Wilson testified that the question of her obtaining employment was never discussed before or after the separation at the end of 2008, until the argument occurred in May, 2012. While the parties had made an agreement when separating that Mr. Bedard would pay all the bills and expenses incurred, Ms. Wilson was now worried and wanted to have the bills put in her name. She acknowledged that she knew Mr. Bedard had been terminated and was financing everything through large withdrawals from the lines of credit, about which she was very concerned. In order for her and the children to survive, she needed support payments from Mr. Bedard. Unfortunately, a considerable argument ensued and Mr. Bedard threatened to remove her access to the line of credit and told her to get a job.

RETROACTIVE SPOUSAL SUPPORT

[88] Orders for retroactive spousal support are treated slightly differently from child support claims: Kerr v. Baranow, 2011 SCC 10 (S.C.C.). The court there observed that the nature of the legal principles and objectives that underlie spousal support may result in considering and weighing the four factors differently. In particular, concerns about notice, delay and misconduct will generally carry more weight in assessing a claim for retroactive spousal support.

[89] With respect to notice, Cromwell J. said, at para. 210, that the commencement of proceedings provides clear notice to the payor that support is being claimed and permits some planning for the eventuality that it was ordered. He later referred to MacKinnon v. MacKinnon (2005), 2005 CanLII 13191 (ON CA), 75 O.R. (3d) 175 (C.A.) as authority for the date of initiation of spousal support proceedings as the “usual commencement date” absent a reason not to make the order effective as of that date (my emphasis). In the view of Cromwell J., “… the decision to order support for a period before the date of the order should be the product of the exercise of judicial discretion in light of the particular circumstances …” (para. 211).

[90] On the facts before me, the midpoint of 2012 is again the appropriate date for the commencement of spousal support. I accept Ms. Wilson’s evidence about support being discussed in May, 2012. She had no income at all and was engaged day and night trying to attend to Jack’s needs. Mr. Bedard insisted he could not recall if child or spousal support was discussed but I accept that he said he did not want to pay. That indicates to me a very obvious understanding of the issue, confirmed again by the April, 2013 joint letter.

[91] Delay on the part of Ms. Wilson cannot impede her claim for spousal support. She was heavily engaged in Jack’s daily autism therapy and all the other extraordinary demands his care placed upon her – in addition, of course, to her daily responsibilities for Quinn’s care. At the time of separation, the children were only one and three years of age. Ms. Wilson testified that she and Mr. Bedard struggled through lengthy bouts of marriage counseling as each maintained a forlorn thought of conceivable reconciliation. In addition, she testified that she was always afraid of Mr. Bedard’s anger and his possible reaction to her moving to dissolve the marriage and press him with a money claim. Last was the fact that she had been unemployed since 2005 and lacked any kind of personal financial resources to pursue formal process, being completely dependent on Mr. Bedard by relying on the small “allowance” she received in addition to his paying the family’s expenses.

[92] By mid-2013, Ms. Wilson realized the recriminations and fighting were not going to stop. She had spent Christmas locked inside the house in her room. She was avoiding the cottage and unsuccessfully trying not to let the children see them fight. She told Mr. Bedard that she had seen a lawyer and “papers were coming.” After a delay not caused by her, this proceeding commenced in early 2014. In these circumstances, Ms. Wilson demonstrated good reason for the delay in advancing her claim and makes an equally good case for entitlement to spousal support well before 2014. The Court of Appeal found, in similar circumstances, that a trial judge was correct in ordering spousal support retroactive to a time before the legal claim was initiated: Ruffolo v. David, 2012 ONCA 698 (C.A.).

[93] Ms. Wilson submits, and I accept, that Mr. Bedard’s patterns of spending and financial behaviour amounted to blameworthy conduct in the context of retroactive spousal support. While intentionally unemployed (as I have found), he made little change to his personal lifestyle, withdrawing large sums in cash in addition to his discretionary spending at retail stores, golf clubs and restaurants. While he was doing this, Ms. Wilson was forced to cut back on her expenses and incurred substantial debt, both on the joint lines of credit and by way of a personal loan, to take care of the children and herself.

[94] As to the reduced circumstances of Ms. Wilson – and, of necessity the children – in my view the retroactive spousal support order sought would appropriately ameliorate her (and their) position to some extent. It cannot be characterized as merely a transfer of capital: Reis v. Bucholtz, supra. Professor J.G. McLeod made the point in his annotation to Allaire v. Allaire (2003), 2003 CanLII 26263 (ON CA), 35 R.F.L. (5th) 256 (C.A.) where he observed that increasingly courts were awarding retroactive support orders to force payors to pay what they should have paid, regardless of whether or not the payments might result in a windfall to the recipient.

SPOUSAL SUPPORT CONSIDERATIONS

[95] In my view, Ms. Wilson is entitled to spousal support of an unlimited duration on both a compensatory and non-compensatory basis. For a concise statement of the law, Blishen J. said in Toscano v. Toscano, supra:

122 As previously noted, Mr. Toscano acknowledges Ms. Toscano is entitled to spousal support of an unlimited duration on both a compensatory and non-compensatory basis.

123 In making any order for spousal support, the Court should consider all the objectives of spousal support outlined under s. 15.2(6) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am. as follows:

An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

124 In addition, pursuant to s. 15.2(4) of the Divorce Act, the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including:

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

125 The court should also consider need, standard of living and ability to pay (see Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420 at para. 36, [Bracklow]). All the factors under s. 15.2(4) must be considered in light of the objectives of support outlined under s. 15.2(6).

[96] With respect to economic disadvantage and hardship, Ms. Wilson has been left in a position of the utmost difficulty. She worked apparently quite capably and reliably in a skilled position at Teranet and later received national recognition for her accomplishments selling the Lifetouch products and services in Etobicoke in the years when she worked under Mr. Bedard. Her past accomplishments and – through them – the probable considerable financial success she would have achieved were it not for the demands, both of the marriage and the consequences of its breakdown, were obvious. She spent, I believe, seven days in the witness box being cross-examined by Mr. Clayton. She was articulate, intelligent, generally unruffled and thoughtful.

[97] Ms. Wilson’s marriage, the sad affliction affecting Jack and the breakdown of the union have diminished her condition and future financial circumstances drastically. As the Supreme Court of Canada stated in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813 (S.C.C.) at paras 79 and 80:

79 The financial consequences of the end of a marriage extend beyond the simple loss of future earning power or losses directly related to the care of children. They will often encompass loss of seniority, missed promotions and lack of access to fringe benefits such as pension plans, life, disability, dental and health insurance (see H. Joshi and H. Davies, "Pensions, Divorce and Wives' Double Burden" (1992), 6 Int'l J. L. & Fam. 289). As persons outside of the work force cannot take advantage of job-retraining and the upgrading of skills provided by employers, one serious economic consequence of remaining out of the work force is that the value of education and job training often decreases with each year in comparison to those who remain active in the work force and may even become redundant after several years of non-use. All of these factors contribute to the inability of a person not in the labour force to develop economic security for retirement in his or her later years.

80 The most significant economic consequence of marriage or marriage breakdown, however, usually arises from the birth of children. This generally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement which jeopardizes her ability to ensure her own income security and independent economic well-being. In such situations, spousal support may be a way to compensate such economic disadvantage.

[98] Aside from the disadvantages of giving up any opportunity to enhance her considerable abilities by education advancement, and taking up full-time work because of the demands placed on her by Jack’s autism, she unfortunately is faced with long years of continued restrictions on her ability to get ahead because of her son’s future dependency.

[99] While that is compelling, Blishen J. also said at para. 129 in Toscano:

Economic hardship arising from the breakdown of marriage encompasses more than career disadvantages. It also includes the “mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself … without it.” (see Bracklow at para. 41)

[100] The extent of Ms. Wilson’s claim for compensatory spousal support is dramatic. The Court of Appeal has affirmed that the existence of both substantial compensatory support and needs based entitlement will generally lead to an award at the high end of the Spousal Support Advisory Guidelines: Gray v. Gray, 2014 ONCA 659 (C.A.). That is the circumstance here.

THE RETROACTIVE SUPPORT CLAIMS CALCULATION

[101] For the reasons above, the calculation of past child and spousal support is as follows and, assuming a commencement date for support payments of July 1, 2012:

2012 2013 2014 2015 2016

child support (Mr. Bedard $100,000 imputed income) (July 1, 2012 to December 1, 2012) 6 x $1,416 spousal support (Mr. Bedard $100,000; Ms. Wilson $0) 6 x $1,719 child support 12 x $1,416 spousal support 12 x $1,698 child support 12 x $1,416 spousal support 12 x $1,747 child support 12 x $1,416 spousal support 12 x $1,660 child support 12 x $1,416 spousal support (Mr. Bedard $100,000; Ms. Wilson $8,750) 12 x $1,136

$8,496 $10,314 $16,992 $20,376 $16,992 $20,964 $16,992 $19,920 $16,992 $13,632

[102] Commencing January 1, 2017, payments of support are to continue in the amounts of $1,416 (child support) and $1,145 (spousal support). Needless to say, Mr. Bedard is to be given credit for all payments of temporary spousal support paid pursuant to the order of Henderson J. dated April 29, 2016, and the agreed “support” payment in the 2013 written acknowledgement.

DISPUTED CREDIT FOR PAYMENTS MADE

[103] The parties agree that significant amounts of money were paid by Mr. Bedard for many smaller expenses, some of which were clearly for the direct benefit of Ms. Wilson, or for the children. The great majority of those payments were agreed. I was confused during the trial by the lack of a clear explanation of the reason for production of even more thick binders, bound briefs and pages and pages of photocopies of cancelled cheques. I think I can distil the issues simply now, with some melding of information from Exhibit 5, the agreed statement of facts:

1. There is a large fund standing in trust following the sale of the jointly-owned cottage in Bayfield;

2. The parties agreed on separation that Mr. Bedard would pay expenses incurred by Ms. Wilson and the children;

3. Those payments were made by cheques, withdrawals from two RBC lines of credit and, presumably, by cash occasionally;

4. The two RBC joint lines of credit were #xxxxx209-001 and #xxxxx564-001 with nil balances on the date of separation;

5. After the exhaustion of savings and the severance, the parties withdrew from the joint lines of credit beginning in August, 2011;

6. Ms. Wilson withdrew $6,000 from the xxxxx564-001 line and further draws of at least $91,161.20from xxxxx209-001;

7. Mr. Bedard withdrew $208,330 from both lines of credit;

8. Mr. Bedard has paid the interest owing on the lines of credit since 2011;

9. The agreement came to an end in mid-2012 and, as a result, I have made support orders as described in these reasons from that date;

10. Mr.Bedard made some voluntary payments of support after July 1, 2012 and also paid some expenses;

11. After their individual responsibilities for the line of credit are determined, the parties are going to seek recompense from the cottage sale fund;

12. Very few, if any, principal payments have been made on the line of credit by Mr. Bedard, and

13. Mr. Bedard seeks recovery of what he terms Ms. Wilson’s proportionate share of the interest paid.

[104] There are also minor disputes about certain payments made after July 1, 2012. Because Ms. Wilson correctly presumes that Mr. Bedard should be given credit for payments made to or for Ms. Wilson or the children as spousal or child support after the date that obligation arose, it is necessary to resolve those questions.

[105] With respect to payments made by Mr. Bedard pursuant to the separation arrangement at the end of 2008, it is axiomatic that the onus falls on him to prove that the nature of payment of an expense was such that it should be treated as a credit to him. In some cases, Ms. Wilson was fair enough to admit that monies paid were, in fact, paid on her behalf and should result in a full credit to Mr. Bedard; in others, she (I think properly) assessed the payment as having been made on a joint basis and attributed half to each party. Still another class of disputed payments were demonstrated in Schedule B to Ms. Bennett’s written submissions where a partial credit was suggested for an obvious recoverable s. 7 Guideline expense incurred for one of the children which was then apportioned based on respective incomes of the parties, presuming Ms. Wilson to be the recipient of high-end SSAG spousal support back to separation, instead of the July 1, 2012 commencement date in these reasons. Last, Ms. Wilson objected to the inclusion of any credit at all to Mr. Bedard for reasons like an absence of explanation surrounding the claimed credit or the nature of the expenditure (a child’s RESP).

[106] Since I have found the commencement date of child and spousal support to be July 1, 2012, the totals from Schedule B for proved credits (excluding the disputed credits where Mr. Bedard’s burden of proof has not been met) are as follows:

2009 2010 2011 2012 2013 2014 2015

100% CREDIT $26,443.96 $21,572.70 $15,523.07 $9,507.02 $118.65

50% CREDIT $1,975.07 $3,981.41 $807.30 $494.96 $377.25

s. 7 C.S.G. $117.85 $54.18 $32.55

[107] Counsel will be required to recalculate what I have found to be the total proper recoverable credits for payments made for expenses directly for Ms. Wilson, partly for Ms. Wilson and for the children. To this will be added the sum of child support voluntarily paid and the payments made for spousal support pursuant to the order of Henderson J. commencing September 1, 2015. If there are any problems with my arithmetic or the calculation of support arrears, I may be spoken to.

EQUALIZATION OF NET FAMILY PROPERTIES

[108] Issues remain with respect to equalization: each party claims a deduction for date of marriage property. The Court of Appeal has affirmed that s. 4(3) of the Family Law Act, R.S.O. 1990, c. F.3 places a statutory onus on the party claiming a deduction from net family property in Qaraan v. Qaraan, 2014 CarswellOnt 6276 (C.A.).

[109] Ms. Wilson claimed ownership of three investment funds at marriage, two Sun Life CI Investment RRSP accounts numbered -3810 and -9630 of $1,298.67 and $19,118.63 respectively, and a Sun Life CI pension account -9640 of $22,620.43. During her cross-examination at trial, Mr. Bedard produced a Home Buyers Plan Request to Withdraw Funds from his records and Ms. Wilson quickly conceded that the fund 9630 had been reduced by $15,132.33 between the statement date and marriage. The Request to Withdraw had never been produced to her by Mr. Bedard before.

[110] Mr. Bedard agreed in cross-examination that, with the exception of the withdrawal, there was no evidence of any other depletion of the investment accounts and I am satisfied, on a balance of probabilities, that Ms. Wilson is entitled to a date of marriage deduction of $5,284.97.

[111] The large date of marriage deduction claimed by Mr. Bedard relates to photographic and like equipment owned by him for a period during his tenure with Lifetouch Canada Inc. when he was involved in the school photo business. He was examined about the complicated series of required equipment purchases and the particulars of the contract by which Lifetouch bought back the equipment from him in 2004. He claimed to be entitled to a deduction of $93,400.

[112] There were obvious difficulties with Mr. Bedard’s list of equipment and values. He admitted in the witness box that the “values” were listed two years ago in the midst of this proceeding and were compiled employing hindsight and considering what assets in the business existed in 2005, or were purchased to accommodate the increased number of 2002 “double cohort” photographs. His original list of equipment and values he said was created in June 2005, as the basis for a required sale of the assets back to Lifetouch, and he had only his memory to rely on when he calculated the amount of his claimed deduction. Interestingly, Mr. Bedard never mentioned a possible date of marriage deduction in Exhibit 133, his June, 2015 Certificate of Financial Disclosure and Financial Statement. It was the next month when his claim arose. His explanation was not very believable.

[113] Further doubt arises about the deduction claimed because of the complete absence of any independent assessment of value from somebody familiar with and knowledgeable about the specialized equipment. There could have been testimony about the effects of age or depreciation on value. Mr. Bedard himself admitted that, early this century, the general trend moved to digital cameras for portrait work which, one would think, could have affected real value at the date of marriage.

[114] In my view, relying on the quantum of the sale price involved in the compulsory repurchase by Lifetouch when Mr. Bedard moved up from territory manager to regional manager is scant evidence of value at the date of marriage. That transaction was hardly an “arms length” sale and Ms. Wilson makes a good point when she emphasizes that Lifetouch would have been “incentivized to keep him happy.” Looking at the issue another way, had the equipment been destroyed in a fire, I seriously doubt that any insurer would accept the resale price to Lifetouch as any realistic evidence of the actual monetary loss for indemnity purposes.

[115] Mr. Bedard admitted that the equipment sale price has to be reduced by $27,000 (an admitted commission component and a $2,000 interest payment). In all of the circumstances, I find the photographic and other equipment at date of marriage had some value but that that value would not exceed $50,000. Counsel will have to redo the net family property calculations. Again, absent agreement, I may be spoken to.

EXCLUSIVE POSSESSION OF THE MATRIMONIAL HOME

[116] Mr. Bedard makes a strong submission for immediate sale of the former matrimonial home, known municipally as 1797 Louise Blvd. in London, emphasizing that “all joint tenants … may be compelled to make or suffer partition or sale …” See the Partition Act, R.S.O., c.4, s. 2. He emphasizes that his prima facie right as a joint tenant to test the market and realize on his interest in the property without delay should be viewed as an absolute right, subject only to the exercise of what he terms a limited jurisdiction in the court to defer the sale of a matrimonial home only where a preponderance of evidence satisfies the test of necessary delay to serve the best interest of children. In his view, Silva v. Silva, 1990 CanLII 6718 (ON CA), [1990] O.J. No. 2183 (C.A.) denies sale where actual spousal prejudice of rights under the Family Law Act can be demonstrated. In that case, Finlayson J.A. found the husband could not “hold the house hostage until his claim has been adjudicated.” Mr. Bedard submits a presumptive right to have the home sold “so that he can realize his equity in the matrimonial home.”

[117] Ms. Wilson seeks an order that she have exclusive possession of the 1797 Louise Boulevard property until July 1, 2019, a date when Jack will have finished his elementary studies at the only school he has ever known and where he has been so greatly accommodated; indeed, Ms. Wilson goes further and agrees that, should she secure alternate housing within the catchment area of Quinn and Jack’s school, the former matrimonial home should be listed for sale 30 days after a lease is signed or an agreement of purchase and sale is executed. Ms. Wilson pointed out in her testimony that she was not seeking a possession order until Quinn had finished Grade 8. Her daughter’s much greater ability to adapt, she said, made that unnecessary.

[118] Subsections 24(3) and (4) of the Family Law Act are formulated as follows:

Order for exclusive possession: criteria

24(3) In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children.

Best interests of child

(4) In determining the best interests of a child, the court shall consider,

(a) the possible disruptive effects on the child of a move to other accommodation; and

(b) the child's views and preferences, if they can reasonably be ascertained.

[119] For all intents and purposes, if the facts make the order sought for exclusive possession appropriate, the order Mr. Bedard urges upon me (sale) would not, in my view, be a proper exercise of my discretion, as a court is obliged to balance the competing rights of one spouse to the sale of the matrimonial home against the rights of the other to exclusive possession. To set aside that statutory right, one who seeks exclusive possession must establish on the balance of probabilities that the case falls within the provisions of s. 24(3): Rosenthal v. Rosenthal (1986), 1986 CanLII 6320 (ON SC), 3 R.F.L. (3d) 126 (Ont. H.C.J.).

[120] As an order for exclusive possession can, in some cases, dispossess a spouse or, as here, effectively block a sale, it has been described as “dramatic in effect” and “highly prejudicial to the dispossessed spouse”: Menchella v. Menchella, 2012 CarswellOnt 3510 (Ont. Sup. Ct.). The onus of proof that an exclusive possession order is justified falls on Ms. Wilson: Rondeau v. Rondeau, 1979 CarswellOnt 323 (Ont. Co. Ct.).

[121] The best interests of children (s. 24(3)(a)) have been described in some cases to constitute the paramount factor amongst those in s. 24(3) and (4). See Rofail v. Naguib, 2012 CarswellOnt 1364 (Sup. Ct.); Leckman v. Ortaaslan (2013), 35 R.F.L. (7th) 98 (Ont. Sup. Ct.).

[122] The required considerations in assessing the best interests of the children involved (s. 24(4)) emphasize the child’s individual point of view and the possible disruptive effects of a move to other accommodation. This – as far as it concerns Jack – is the crucial evidence before me here.

[123] Ms. Wilson was strong and detailed in her assertion that Jack would benefit greatly from staying in the community he knows and the school catchment area where his friends are (like Quinn). She pointed to the length of time it takes to develop relationships when dealing with a child with autism and, as far as community and school supports and services are concerned, she emphasized the fact that those services are now all linked and functioning. Ms. Wilson fears that a change of school and new personnel could not guarantee similar effective service for Jack, especially when transition or change is never easy for him and his non-verbal status requires a lot of time for him to comprehend and accept new situations. Of particular importance to Ms. Wilson and the children is the presence of Beth Vincent, their neighbor, who goes out of her way to provide support and assistance for them since she moved next door in 2008. She is knowledgeable about Jack’s needs and routines from his visits to her house, the swimming instruction she provided for him in the summers and the periods when she has looked after the children.

[124] Mr. Bedard said very little in his evidence about the children’s needs or Jack’s vulnerabilities. All he said was that he thought the boy found changes of residence “quite comfortable and easy” as long as he had “care people” present that he loves and knows will support him. He testified that, in his view, transitions would be “okay” for Jack and that a sale would allow him to have access to his share of the assets. He went on to complain about his lack of work, the fact that Ms. Wilson did not pay rent (as he does) and that she had contributed nothing to their joint debt interest charges.

[125] While the financial position of both spouses is a required consideration in the possession issue (s. 24(3)(c)), I think Mr. Bedard’s position has much less force as his precarious situation is largely the result of what I have already determined to be his feckless and unmotivated job search efforts over many years.

[126] With respect to the availability of other suitable and affordable accommodation (s. 24(3)(e)), Ms. Wilson’s evidence that other homes in the area are very expensive and that she has no ability to qualify for a sufficient mortgage went unchallenged.

[127] Balancing the facts in this case (in the context of the required statutory considerations), I am satisfied that Ms. Wilson has met her burden of proof with respect to exclusive possession and orders will go in terms of paragraphs 23 to 27 of Ms. Wilson’s proposed draft order.

LINE OF CREDIT APPORTIONMENT

[128] Each of the parties seeks a resolution of their responsibility for payment of the joint lines of credit with the Royal Bank. They agree that there was a zero balance on the two credit lines at the date of separation, that the first withdrawal occurred in August, 2011 and that Mr. Bedard paid interest as it accrued up to trial in the total amount of $32,598.56 – half of which he now seeks to recoup from Ms. Wilson.

[129] There is some authority for the proposition that a debtor under a joint line of credit who is proved to have withdrawn more funds than the other debtor may have reduced access to funds generated by the sale of an asset: Luker v. Gailey, 2013 CarswellNS 720 (N.S. S.C.). In Risto v. Marcelais, 2014 ONSC 1873 (Sup. Ct.), Linhares De Sousa J. found that a party may be relieved of liability for payment of part of a joint line of credit charge secured against property where the other debtor’s actions increased the debt.

[130] The “updated Tab 1” of Exhibit 105 shows that Ms. Wilson withdrew a total of $97,711.48 from the lines of credit, while Mr. Bedard withdrew $208,330. From the net proceeds of the sale of the Bayfield cottage, Ms. Wilson should pay the sum of $97,711 from her 50% share and Mr. Bedard should pay the balance of the RBC indebtedness on the two lines of credit, after which both lines shall be closed.

[131] With respect to interest, it would be inequitable, in my view, to require Ms. Wilson to pay half the past interest charges as Mr. Bedard will be receiving some credit for payments made on her behalf (from the lines of credit) against the retroactive orders of child and spousal support I have made. That being said, Ms. Wilson bears some obligation to contribute to the interest accrued on the borrowed funds: Risto v. Marcelais, supra; however, that obligation should be limited to a post-separation adjustment or payment to Mr. Bedard in proportion to their respective withdrawals of $97,711.44 and $208,330. Any other disposition of the interest obligation would result in Ms. Wilson paying interest on her own child and spousal support.

BENEFITS COVERAGE

[132] An order will go requiring Mr. Bedard to maintain the children of the marriage as beneficiaries of any extended health, drug or dental benefits to which he is a party, for so long as the children qualify in accordance with the terms of the plan or plans.

DIVORCE

[133] I accept the evidence given at trial concerning the date of separation. Ms. Wilson testified that she was neither aware of nor party to any scheme to deceive the court or to give false evidence to obtain a divorce. Both parties denied any possibility of a reconciliation and, accordingly, an order will go dissolving their marriage, celebrated at Goderich on June 2, 2001, effective 31 days from this date.

COSTS

[134] Counsel may make submissions with respect to costs in letter form addressed to me in the care of the trial coordinator within 30 days. I want to know particulars of offers to settle, if any, and when they were made. Submissions must be brief.

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Released: September 1, 2017

CITATION: Wilson v. Bedard, 2017 ONSC 4517

COURT FILE NO.: F368/14

DATE: September 1, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Kelly Lynn Wilson

Applicant

• and -

Raymond Isidore Bedard

Respondent

REASONS FOR JUDGMENT

VOGELSANG J.

Released: September 1, 2017